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Opinion | Supreme Court Justices Say They Get Along. Should We Care?

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The Supreme Court is hurting.

I can say that with confidence — not based on any inside information but on the external evidence of how hard some of the justices are working to show that everyone on the court really does get along.

“When we disagree, our pens are sharp, but on a personal level, we never translate that into our relationship with one another,” Justice Sonia Sotomayor told an audience at the National Governors Association conference in February. “We don’t raise our voices, no matter how hot-button the case is,” Justice Amy Coney Barrett said at the civics forum at George Washington University in March.

The retired justice Stephen Breyer, on the talk circuit for his new book on constitutional interpretation, has been making the same point. In a guest essay in The Times this month, he observed that “justices who do not always agree on legal results nonetheless agree to go to hockey games or play golf together.” He added: “The members of the court can and do get along well personally. That matters.”

Does it?

I’m reminded of the last time the court made a concerted effort to assure the public that all was well. It was during the weeks that followed the ruling that clinched the 2000 presidential election for George W. Bush. With the court in recess, justices who had voted on either side of that 5-to-4 decision, Bush v. Gore, scattered around the country and the world (Justice Ruth Bader Ginsburg went to Australia), taking the occasion of previously scheduled lectures to claim that the court was not in crisis.

Justice Ginsburg and Justice Antonin Scalia, bitterly opposed in that case and in a good many others, let it be known that they had kept up their tradition of New Year’s Eve dinner together with their spouses. “The justices are behaving almost like survivors of a natural disaster who need to talk about what happened in order to regain their footing and move on,” I wrote at the time.

Now, by contrast, there is no single issue, no giant iceberg that the court has struck, but rather separate disconcerting developments that have noticeably dented the court’s once secure public standing.

Was it the Dobbs v. Jackson Women’s Health Organization decision that erased the constitutional right to abortion and upended state politics in much of the country? The astonishing leak of a draft of the Dobbs decision, which Justice Clarence Thomas called “tremendously bad” and destabilizing for the court? The controversy over the court’s seeming inability to bind itself to a judicial ethics code? The abrupt emergence of a conservative supermajority flexing its muscles so forcefully that Justice Barrett, before reaching her first anniversary on the court, felt driven to declare publicly that “this court is not composed of a bunch of partisan hacks”?

It may be a bit of each of these or none of them, but the inventory itself suggests that what matters is what the court does or doesn’t do: that the legacy of the Roberts court will reside in the pages of United States Reports, the official compilation of Supreme Court decisions, and not in the justices’ datebooks. What counts is not how the justices treat one another but how they treat the claims of those who come before them.

I’m still shaking my head, for example, over a decision from several terms ago that stripped two laywomen, teachers in elementary parochial schools, of the protection of federal anti-discrimination laws because, the 7-to-2 majority held, they were effectively “ministers” who fell under a rule the court adopted eight years earlier called the ministerial exception to ordinary civil laws. The women had no substantial religious training. One did not have her contract renewed after she revealed that she needed time off for treatment of breast cancer. The Americans With Disabilities Act did her no good. By the time the court decided the case, she had died.

Few people remember that decision from only four years ago, Our Lady of Guadalupe School v. Morrissey-Berru, which cast thousands of lay employees of religious organizations out from a federal safety net intended for all. I mention it only to underscore the ongoing need to watch what the court does, not how the justices feel.

The Supreme Court and other appellate courts are categorized in the judicial literature as collegial courts. “Collegial” in that usage is a term of art. It doesn’t mean that the judges necessarily get along. It means that these multimember courts act as collectives, when a majority coalesces. In a forthcoming memoir, “Vision,” Judge David Tatel, who recently retired from the U.S. Court of Appeals for the D.C. Circuit, offers as good a definition of judicial collegiality as I have seen. “Judicial collegiality,” he writes, “has nothing to do with singing holiday songs, having lunch or attending basketball games together. It has everything to do with respecting each other, listening to each other and sometimes even changing our minds.”

Years ago, Mark Alan Stamaty used a “Washingtoon,” his cartoon that ran regularly in The Washington Post, to depict the Supreme Court justices walking in single file, each carrying a bundle. “The Supreme Court Goes to the Laundromat” was the title. I thought it was so funny that I kept it for years tacked to the New York Times cubicle in the Supreme Court pressroom. It portrayed, to be sure, a collegial Supreme Court.

But it was a cartoon.

Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.

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